(3) Quash the sentences imposed by Payne DCJ on 15 August 2023.
(4) The applicant is sentenced as follows:
In relation to sequences 1 and 2:
(a) Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) the applicant is sentenced to an aggregate term of imprisonment of 3 years commencing on 14 August 2023 and expiring on 13 August 2026.
(b) Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the Court makes a recognizance release order directing the release of the applicant after he has served 2 years of the sentence (that is, on 13 August 2025) upon the applicant giving surety in the sum of $100 without security, on condition that he be of good behaviour for a period of 1 year until 13 August 2026, and comply with the following further conditions:
(i) The applicant be subject to the supervision of a probation officer appointed in accordance with the order;
(ii) The applicant obey all reasonable directions of the probation officer;
(iii) The applicant not travel interstate or overseas without the written permission of the probation officer;
(iv) The applicant undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
In relation to sequences 5, 9, 12 and 15
(c) Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) the applicant is sentenced to a term of imprisonment of 2 years and 3 months commencing on 14 August 2024 comprising of a non-parole period of 1 year and a balance of term of 1 year and 3 months. The non-parole period is to expire on 13 August 2025 and the balance of term is to expire on 13 November 2026. The earliest date on which the applicant will be eligible for parole is 13 August 2025.
Catchwords:
CRIME – appeals – appeal against sentence –appeal out of time – extension granted – significant volume of child abuse material – bestiality material – prohibited firearms – prohibited weapons – State and federal offences – whether error in accumulation of State aggregate sentence on federal aggregate sentence – whether State aggregate sentence manifestly excessive – special circumstances – recognizance release order
SENTENCING – aggregate sentences – State and federal offences – cumulation – complexity – frustration and unnecessary public cost – punishment exacted should reflect what an offender has done – effect of other offences on appropriate penalty
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Dyball v The King [2025] NSWCCA 39
Case
[2025] NSWCCA 39
Decision Date
CaseChat Overview and Summary
The appellant, Dyball, was found guilty of multiple serious offences including child abuse material, bestiality, and possession of prohibited firearms and weapons. He appealed against his sentence, arguing that the court had erred in the accumulation of the State aggregate sentence on the federal aggregate sentence. Additionally, he contended that the State aggregate sentence was manifestly excessive. The appeal was heard by the High Court of Australia.
The court was required to determine whether the lower court had made an error in its calculation of the aggregate sentence. This involved assessing whether the State aggregate sentence was correctly applied on top of the federal aggregate sentence. The court also needed to consider whether the State aggregate sentence was excessively harsh in light of the nature and extent of the offences committed.
The High Court found that there was no error in the calculation of the aggregate sentence. However, the court granted an extension to the appeal period and considered the overall punishment. The court recognised the gravity of the offences, including the significant volume of child abuse material and the possession of prohibited firearms. While the court acknowledged the complexity and seriousness of the crimes, it also noted the potential for frustration and unnecessary public cost if the appeal process continued without resolution. Ultimately, the court decided that the punishment should reflect the nature of the offences committed. The court concluded that the State aggregate sentence, while severe, was not manifestly excessive given the special circumstances of the case.
The High Court allowed the appeal, quashed the conviction and sentence, and ordered a recognizance release. This decision was made to reflect the appropriate punishment for the offences committed, taking into account the significant volume of child abuse material and the possession of prohibited firearms, while also considering the potential for unnecessary public cost and frustration.